Hulse v. The State. § 14; Rev. Stats., § 5175. And, finally, the challenge in this case should have been sustained. 2. The panel of the struck jury was exhausted before the requisite number was obtained. The statute provides that "if a jury be not made from said sixteen jurors, the sheriff shall, under the direction of the court, fill up the panel from the bystanders," etc. 75 Ohio L. 642, § 26; Rev. Stats., § 5187. And the statute further provides that a deputy sheriff "may do and perform any and all of the duties appertaining to the office of his principal." 66 Ohio L. 35; 1 S. & C. 500; 75 Ohio L. 598, § 595; Rev. Stats., S$ 10, 4949. The court ordered William J. James, a deputy sheriff of the county, to call persons from the bystanders to fill the panel. To this the prisoner objected. The deputy called M. S. Bonnell. The prisoner challenged him for cause, upon the ground that bystanders should be selected and called by Joseph Moses, bailiff of the criminal department of the court, who, it appeared, was then present in court, able and willing to perform the service, and it was insisted on behalf of the prisoner that the bailiff alone was authorized to perform that duty. The court refused to sustain the challenge, and the prisoner excepted. Moses had been appointed and qualified as criminal bailiff, under an act passed in 1879. 76 Ohio L. 54. The act, in its first section, authorizes a judge of the court of common pleas to "appoint a criminal bailiff for such county, who shall hold his office for the term of two years, and until his successor is appointed and qualified." And section two provides, among other things, as follows: "It shall be the duty of such criminal bailiff to act for the sheriff in all criminal cases, and matters of a criminal nature, in the common pleas and probate courts of said county. He shall be present during all trials of criminal cases in said courts, under direction of the sheriff, and shall perform all the duties during such trials as are now or may be performed by the sheriff of such counties." Under the former constitution, the election of a sheriff was provided for and his term of office fixed. The Hulse v. The State. present constitution does not contain that provision, but it recognizes the existence of the office of sheriff, and, like the former constitution, provides that he shall not be eligible to the office for more than four years in any period of six years. Probably legislative control over the office, while it has an existence, is substantially the same under the present as under the former constitution. The power to take from the office of sheriff a material part of longrecognized and accustomed duties, create a new office, and confer such duties on its incumbent, so that the latter will have complete power with respect to such duties to the exclusion of the sheriff, may well be doubted. The State ex rel. v. Brunst, 26 Wis. 412; King v. Hunter, 65 N. C. 603; Warner v. The People, 2 Denio, 272; The People ex rel. v. Albertson, 55 N. Y. 50. But we do not understand that this is the effect of the act of 1879. That the practice may be changed, and the powers and duties of the sheriff in some respects increased or diminished, can not be doubted. Indeed, this court has held that this may be done without affecting the liability of his sureties. King v. Nichols, 16 Ohio St. 80. And from 1824 until 1854, the court of common pleas could require the attendance of constables in court and before the grand jury. 2 Chase, 1356; 3 Chase, 1772; 4 Curwen, 2590. But this did not detract from the power of the sheriff. The officers so attending, by direction of the court, were the sheriff's assistants, and performed services which are now performed by his deputies. The act of 1879 must rest on a similar principle. The criminal bailiff is in effect a deputy sheriff, required to perform important and special services, but he must perform them "under the direction of the sheriff," who is not prohibited from performing the same duties at any time when it becomes necessary for him to do so. Nor does the act so affect the power of other deputies of the sheriff that the court may not, as occasion may require, direct them to perform any act which the sheriff himself might perform. Any other construction would lead to serious inconvenience, as the bailiff, in discharging the various duties of his ap Hulse v. The State. pointment, is often necessarily absent from the court. In this case, the bystander may not have been in the immediate presence of the court, and if the bailiff had gone from the court-room, prisoners might have been left without any officer in charge. But how that may have been is immaterial. We are satisfied the court did not transcend its authority in directing deputy sheriff James to perform the duty in question. 3. Dr. John Davis gave material testimony tending to convict the prisoner. After the jurors had retired to consider of their verdict, they returned into court and requested the judge presiding at the trial to state to them his recollection of Davis' testimony. To this the prisoner objected, but the court complied with the request of the jury, and the prisoner excepted. The chapter regulating the trial of civil cases contains a provision authorizing the court, on request of the jury, to "give its recollection as to the testimony on the point in dispute." 75 Ohio L. 643, 644, §§ 29, 34; Rev. State., §§ 5190, 5194. The chapter relating to the trial of criminal cases, contains no corresponding provision. 74 Ohio L. 349, § 33; Rev. Stats., § 7300. But an examination of these chapters does not lead to the conclusion that, in omitting the provision in the latter case, there was any intention to deny to the judge such power. In stating his recollection of testimony at the request of the jury, of course a judge should observe great caution, as several serious mistakes have been made in that way; but we do not doubt the authority of a judge to comply with such request, nor can we say that the power was improperly exercised in this case. Of course, it is necessary that the prisoner should be present, unless he absconds during the trial. We do not find any error in the record, except in overruling the challenge to the array; and for the error in that regard the judgment will be reversed and a new trial awarded. Judgment reversed. Moore v. Ogden. WHITE, J., did not concur in the reversal, being of opinion that the irregularity in making up the list from which the jury was struck by the parties without objection, is not sufficient to warrant a new trial. MOORE, ADMINISTRATOR v. OGDEN. 1. A decree of foreclosure of a mortgage was rendered before the code took effect. It found the amount due on the notes of defendant, and ordered a sale of the mortgage premises. Held, that this was not a judgment, within the meaning of section 422 of the code, and that it did not become dormant, by a failure to issue an order of sale within five years. 2. The suit for a foreclosure, as between the parties, continued pending for the purposes of execution, as well after as before the decree was rendered, and until the order of sale was executed, or otherwise satisfied, though the case was left off the trial docket after the code took effect, and although no steps were thereafter taken to execute the decree for more than five years. 3. The right to enforce said decree abated by the death of plaintiff, but it may be revived in the name of his personal representative. 4. The personal representative may, by petition, have such decree and order of sale revived and enforced in his name. ERROR. Reserved in the District Court of Brown county. The action in the court below, was brought December 23, 1866, by the plaintiff, as administrator of one Felix Coonce. It was founded on a decree of foreclosure of a mortgage, rendered in 1843, in a suit then pending in the common pleas of Brown county, wherein said Felix Coonce was complainant, and the present defendant was the respondent. The proceeding to foreclose, was founded on the notes and mortgage of the defendant to Coonce. Felix Coonce died. about 1864, and plaintiff was appointed his administrator. The petition in this case alleges, that the amount found due by said decree, is still due and unpaid, and that the same has become dormant. Moore v. Ogden. The premises embraced in said mortgage and decree are described, and it is alleged that the defendant was duly served with process, in said proceeding to foreclose. The prayer is for a judgment for the amount found due by said decree, with interest thereon from date of its rendition, for an order of sale of so much of said real estate as would be sufficient to pay the same, and for all proper orders, and judgment in the premises. The defendant filed a motion to strike out so much of said petition as related to a sale of the real estate, on the ground that said decree had become dormant by the lapse of five years, without execution thereon, whereby the lien, created, as is alleged by the decree, was lost. This motion was sustained, and the plaintiff excepted. Defendant then answered to the action for a personal judgment: 1. Payment; 2. Satisfaction. The plaintiff by reply denied, and, upon a trial upon the issues joined, judgment was rendered for plaintiff for $5,191, the amount found due. The defendant moved for a new trial for the reason that the finding was against the law and the evidence. This motion was overruled, and a bill of exceptions tendered by the defendant, which was executed and filed; but as he is not complaining of any error, this part of the record need not be further noticed. The plaintiff filed his petition in error in the district court, to reverse the order and judgment of the court below sustaining said motion, and striking out so much of the petition as related to an order of sale of the mortgaged premises. On his motion, the case was reserved for decision here. James H. Thompson and D. W. C. Loudon, for plaintiff in error. Sly & Devore and David Thomas, for defendant in error. JOHNSON, J. 1. This motion was predicated on the idea that the decree of foreclosure was a judgment, within the |